tt\tt  ■** f u 


AT  SPECIAL  TERM. 


JOHN  JACOB  ASTOR 


against 


THE  MAYOR,  ALDERMEN  AND  COMMONALTY 
OF  THE  CITY  OF  NEW  YORK  and  AN- 
DREW H.  GREEN.  Comptroller. 


FREEDMAN,  J. 


NEW  YORK: 
Evening  Post  Steam  Presses,  41  Nassau  St.,  cor.  Liberty. 

i~S74. 


r 

j 


Avery  Architectural  and  Fine  Arts  Library 
Gift  of  Seymour  B.  Durst  Old  York  Library 


3  2.2. 


f  uperior  Court 

OF    THE    CITY    OF    NEW  YORK. 

 .  ^ 

John  Jacob  Astor,  j 

Plaintiff,  I 
against  f 

The   Mayor,    Aldeemen  and) 
Commonalty  of  the  City  of  New! 
York,  and  Andrew   H.  Green,! 
Comptroller  of  said  city.  1 

Defendants.  I 


Free  dm  an,  J. 

This  action  is  brought  by  the  plaintiff  as  the  owner  of 
a  number  of  lots,  situate  in  the  city  of  Xew  York,  to  have 
certain  assessments,  alleged  to  have  been  illegally  imposed 
upon  said  lots,  for  a  street  improvement,  removed  as  a 
cloud  upon  his  title.  The  relief  demanded  by  the  com- 
plaint is,  that  the  record  of  said  assessments  in  the  office 
of  the  comptroller,  so  far  as  it  affects  the  said  lots  of  the 
plaintiff,  be  canceled  and  annulled;  that  the  entries 
made  in  said  record,  so  far  as  they  affect  the  said  lots  of 
the  plaintiff,  be  expunged  and  altogether  held  for  naught, 
and  removed  as  a  cloud  upon  the  title  of  the  plaintiff; 
and  that  the  said  assessments  made  upon  plaintiff's  said 
lots,  be  adjudged  to  be  void  and  be  set  aside ;  and  that  the 
defendants,  their  officers,  agents  and  servants,  be  per- 
petually restrained  from  collecting  such  assessments,  and 
from  taking  any  proceedings  therefor,  by  sale  or  other- 


NS? 

2 

wise ;  and  that  the  plaintiff  have  such  further  or  other 
relief,  or  both,  in  the  premises  as  to  the  court  may  seem 
meet,  with  the  costs  of  this  action. 

The  case  is  a  difficult  and  complicated  one,  and  involves 
large  public  and  private  interests.  Some  of  the  questions 
involved  are  novel  and  of  the  highest  importance  to  the 
corporation  of  the  city  of  New  York,  and  to  all  who  own 
and  possess  real  property  within  the  -corporate  limits.  I 
have  therefore  given  to  the  case  the  most  careful  con- 
sideration. 

On  the  3d  of  April,  1807,  an  act  of  the  Legislature  was 
passed,  fixing  the  plan,  the  lines,  and  the  extent  of  the 
streets  in  the  city  of  New  York,  and  providing  for  the 
making  and  filing  of  a  map  of  the  same. 

On  the  9th  of  April,  1813,  an  act  was  passed  (chap.  86) 
entitled  "  An  Act  to  reduce  several  laws,  relating  particu- 
larly to  the  city  of  New  York,  into  one  act,"  and  by  it 
general  power  and  authority  was  conferred  upon  the 
mayor,  aldermen  and  commonalty  of  said  city,  to  lay  out, 
form,  open,  extend,  enlarge,  straighten,  alter  or  otherwise 
improve  streets.  It  also  prescribed  the  manner  in  which 
these  powers  should  be  exercised,  and  the  steps  necessary 
to  be  taken,  so  as  to  render  proceedings  taken  unc'er  said 
act  effectual  and  binding  upon  the  persons  and  prop- 
erty to  be  affected  by  them. 

On  the  17th  of  May,  1869,  the  special  act  was  passed 
(chapter  890),  under  which  this  case  has  arisen.  It  is 
entitled  "  An  Act  to  alter  the  map  or  plan  of  the  city  of 
New  York,  and  to  carry  the  alterations  into  effect."  The 
first  section  of  this  act  provided  for  the  widening  and 
straightening  of  Broadway,  from  Thirty-fourth  to  Fifty- 
ninth  street,  and  required  the  Commissioners  of  the 
Central  Park  to  lay  out  that  part  of  Broadway,  and  to 
locate  the  easterly  and  westerly  lines  thereof,  and  to  file 
duplicate  certificates  of  maps  in  the  offices  of  the  street 
commissioner  and  the  register  of  the  city  of  New  York, 
and  such  tiling  was  declared  to  be  conclusive,  as  io  the 
extent  and  boundaries  of  such  improvement.  All  laws  in 
force  relative  to  street  Openings,  &c,  were  declared  to  be 
applicable  to  the  proceedings  to  betaken,  except  as  modi- 
fied by  the  said  act. 


3 


The  second  section  of  said  act  provided  that,  upon  the 
tiling  of  the  said  maps  and  certificates,  the  counsel  to  the 
corporation  should  institute  proceedings  to  acquire  for 
public  use  and  in  behalf  of  the  corporation,  the  title  to 
the  lands  required  for  the  purposes  of  the  improvement, 
and  that  for  this  purpose  he  should  make  application  to  the 
Supreme  Court,  at  any  Special  Term  in  the  first  district, 
for  the  appointment  of  three  commissioners  of  estimate 
and  assessment. 

Other  regulations  were  made,  as  by  reference  to  said 
act  will  more  fully  and  at  large  appear. 

The  Commissioners  of  Central  Park  made  and  filed  the 
certificates  and  maps  as  required  by  said  act,  and  the  boun- 
daries of  Broadway,  as  altered  and  widened,  became  con- 
clusively fixed  and  defined. 

The  counsel  to  the  corporation,  for  and  on  behalf  of  the 
corporation,  made  application  to  the  Supreme  Court  for 
the  appointment  of  three  commissioners  of  estimate  and 
assessment,  as  required  by  the  act,  and  three  commission- 
ers were  appointed,  and  such  proceedings  were  afterwards 
had  that  the  said  commissioners  made  their  awards  for 
damage  and  their  assessments  for  benefit,  and  their  report 
was  confirmed  by  the  Supreme  Court  on  the  28th  of  Dec, 
1870. 

On  the  27th  February,  1871,  another  act  was  passed  in 
relation  to  the  widening  of  Broadway,  and  to  regulate  the 
practice  in  that  proceeding  (chap.  57  of  Laws  of  1871,  p. 
92).  By  the  first  section  of  this  act  it  was  provided  that 
an  appeal  might  be  taken  by  the  mayor,  aldermen  and 
commonalty  of  the  city  of  New  York  from  the  order  of 
the  confirmation  of  the  report  theretofore  entered  at  any 
time  within  four  months  from  the  date  of  such  order  ; 
and  the  manner  of  hearing  the  said  appeal  was  specially 
prescribed,  and  the  practice  therein  regulated. 

The  1th  section  of  this  act  provided  that  within  four 
months  the  said  mayor,  &c,  of  New  York  might  also 
move  to  vacate  the  said  order  of  confirmation,  on  the 
ground  of  error,  mistake,  irregularity  or  illegality,  or  that 
the  awards  or  assessments  were  unfair,  unjust,  inequitable 
or  oppressive ;  and  the  practice  on  such  motion  was  regu- 
lated by  special  provisions.    In  case  of  the  vacation  of  the 


4 


order,  the  matter  was  to  be  referred  back  to  new  commis- 
sioners, and  in  sncli  case  a  majority  of  the  new  commis- 
sioners were  to  be  others  than  the  old  commissioners, 
and  their  report  was  to  come  up  on  twenty  days'  notice- 

The  motion  to  vacate  was  made  and  granted  on  grounds 
specified  in  the  last  named  act,  and  on  the  3d  ol  April, 
1871,  new  commissioners  were  appointed  for  the  purpose 
of  '•amending  and  correcting  the  report  made  to  this 
"court  on  December  28,  1870,  and  to  make  a  new  assess- 
"ment  in  whole,  both  as  to  awards  for  damage  and  assess- 

merits  for  benefit,  as  they  might  deem  proper."  An 
appeal  was  taken  from  this  decision  to  the  General  Term 
of  the  Supreme  Court,  and  the  order  of  the  Special  Term 
was  affirmed  (61  Barb.,  Sup.  Ct.  K.,  483).  A  further  ap- 
peal was  taken  to  the  Court  of  Appeals,  where  the  deci- 
sion bebw  was  affirmed  (49  X.  Y.,  150). 

The  new  commissioners  appointed  by  the  order  of  April 
3d,  1871,  consisted  of  Alexander  T.  Stewart,  John  Q. 
Jones  and  James  S.  Hennessy.  The  last  named  had  also 
been  a  member  of  the  first  board.  These  commissioners 
took  the  oath  of  office  and  entered  upon  the  discharge  of 
their  duties. 

Xo  question  is  raised  by  the  plaintiff  as  to  the  regu- 
larity of  the  proceedings  up  to  this  point. 

After  several  meetings  had  taken  place,  Alexander  T. 
Stewart,  on  the  29th  of  May,  1871,  resigned  and  ceased 
to  act  as  one  of  the  commissioners.  On  or  about  June  1, 
1871,- on  motion  of  the  counsel  to  the  corporation,  made 
without  notice  by  publication  or  otherwise,  an  order  was 
made  in  the  Supreme  Court  appointing  William  E.  Dodge 
commissioner  of  estimate  and  assessment.  Mr.  Dodge, 
being  about  to  sail  for  Europe,  declined  to  act,  and  on  or 
about  the  10th  of  June,  1871,  an  order  was  made,  on  a 
further  motion  of  the  corporation  counsel,  made  without 
notice  by  publication  or  otherwise,  revoking  the  order  of 
June  1st,  and  appointing  William  Wood  commissioner  in 
place  of  Alexander  T.  Stewart.  Both  these  orders  were 
filed  in  the  clerk's  office,  on  the  12th  of  June,  1871,  and 
on  l he  same  day  Mr.  Wood  took  the  oath  of  office  and 
entered  upon  the  discharge  of  his  duties.  Xo  further 
change  occurred  subsequently  in  the  composition  of  the 
commission. 


5 


The  commissioners  thus  constituting  the  commission 
held  various  meetings,  and,  in  the  course  of  time,  reported 
the  result  of  their  labors  to  the  Supreme  Court,  in  the 
shape  of  two  reports.  One  of  these  was  signed  by  a 
majority,  Messrs.  Jones  and  "Wood,  and  the  other  was 
made  by  Mr.  Hennessy.  The  Supreme  Court  referred  the 
majority  report  back  to  the  commissioners  who  had  made 
it,  with  instructions  to  correct  the  same  in  several  parti- 
culars. These  corrections  were  made  in  the  shape  of  iwo 
amended  or  supplemental  reports,  and  thereupon  the  court 
confirmed  the  majority  report  as  corrected.  The  order  of 
confirmation  was,  on  appeal,  affirmed  by  the  General 
Term  (03  Barb.,  591).  A  further  appeal  was  taken  to 
the  Court  of  Appeals,  but  dismissed  by  that  court,  for  the 
reason  that,  under  the  provisions  of  the  Act  of  1813,  the 
report  on  confirmation  by  the  Supreme  Court  became 
final  and  conclusive  upon  the  Mayor,  Aldermen  and  Com- 
monalty as  well  as  upon  the  parties  interested,  and  that 
consequently  the  order  of  affirmance  made  by  the  General 
Term  was  not  appealable. 

The  plaintiff'  has  now  filed  his  bill  in  equity  for  the  re- 
moval of  the  assessments  as  a  cloud  upon  his  title,  and 
assigned  various  reasons  why  his  prayer  for  relief  should 
be  granted.  He  contends,  in  the  first  place,  that  the 
assessments  were  not  laid  as  required  by  law  to  be  laid. 

1.  Because  the  appointment  of  William  Wood  was  made 
without  notice,  and  therefore  was  a  nullity,  which  fact 
renders  the  report  made  by  him,  jointly  with  Jones,  wholly 
null  and  void.    And — 

2.  Because  no  notice,  by  publication  or  otherwise,  of 
the  presentation  of  either  of  the  amended  or  supplemental 
reports  was  given,  as  required  by  statute. 

I  propose  to  consider  these  objections  at  once,  and 
without  reference  to  the  constitutional  question  herein- 
after referred  to. 

The  Act  of  May  17,  1800  (chap.  800),  authorizing  the 
widening  and  straightening  of  Broadway,  provides  that 
"  all  acts  now  in  force  relative  to  opening,  &c,  streets  and 
"  avenues  in  the  said  city,  shall  apply  to  that  part  of 


6 


ei  Broadway  as  so  laid  out,  and  to  all  proceedings  under 
"  this  act,  so  far  as  the  same  are  applicable,  except  as 
hereinbefore  or  hereinafter  provided"  (§1,  p.  2,237). 
And  the  Act  of  February  27,  1871  (chap.  57),  provides 
that  proceedings  under  it  "  shall  be  regulated  by  and  ac- 
"  cording  to  the  laws  now  existing  relating  to  the  open- 
ing of  streets  and  avenues  in  the  city  of  New  York" 

(I  4,  P-  9*)- 

The  only  act  in  force  in  1869  and  1871  relative  to  the 
appointment  of  commissioners,  so  far  as  the  questions  now 
under  examination  are  concerned,  was  the  Act  of  April  20, 
1839  (chap.  200  of  Laws  of  1830).  which  had  superseded 
the  provisions  of  the  Act  of  1813,  upon  this  subject. 

Section  2  of  this  act  provides  as  follows  : 

"  The  Commissioners  of  Estimate  and  Assessment  shall 
be  appointed  as  follows  :  The  Mayor,  Aldermen  and  Com- 
monalty shall  give  notice,  by  advertisement  to  be  pub- 
lished in  at  least  four  of  the  public  newspapers  printed  in 
said  city  *  *  *  for  and  during  the  space  of  twenty 
days"    *    *  * 

Section  4  provides  that  "  the  commissioners  shall  give 

notice  of  the  time  and  place  of  making  their  report,  by 

advertisement,  to  be  published  for  at  least  sixty  days. 
*    *  * 

Section  9  is  as  follows: 

"All  motions  (except  as  hereinbefore  provided)  *  *  <* 
shall  be  upon  giving  previous  notice  of  the  time,  place 
and  object  of  such  motion,  to  be  published  for  at  least 
fourteen  days  in  four  of  the  public  newspapers."  *    *  * 

Section  12.  *  *  *  "  Public  notice  of  the  time  and 
place  of  taxation  of  costs  shall  be  given  for  the  same  time 
and  in  the  same  manner  as  notices  required  to  be  given  by 
the  above  ninth  section."    *   *  * 


Section  13.  So  much  of  the  act  aforesaid  (t.  e.,  the  Act 


7 


of  1813),  or  any  other  act  as  is  inconsistent  with  the  pro- 
visions of  this  act,  is  hereby  repealed. 

No  change  has  been  made  in  these  requirements  by  any 
subsequent  law,  except  by  §  8  of  the  Act  of  April  24th, 
1862  (chap.  483),  which  is  as  follows  : 

"Any  notice  now  required  or  hereafter  to  be  re- 
quired by  law  to  be  published  in  any  proceeding  for  the 
opening,  &c,  of  any  street,  &c,  shall  hereafter  be  published 
in  not  more  than  two  daily  newspapers,  *  *  *  and 
handbills  shall  be  posted  in  three  conspicuous  places."  *  * 
And  by  the  Act  of  1871  (chap.  57),  which  shortened  the 
notice  to  be  given  by  publication  of  the  presentation  of  the 
report  for  confirmation  to  "at  least  twenty  fays,"  and  also 
limited  the  number  of  the  newspapers  to  tivo. 

The  application  for  the  order  of  the  appointment  of  a 
commissioner  to  fill  the  vacancy  created  by  the  resigna- 
tion of  Mr.  Stewart  was  a  motion  within  the  definition  of 
that  term  contained  in  section  401  of  the  Code,  and  it 
seems,  therefore,  that  independently  of  the  requirements 
of  the  second  section  of  the  Act  of  1839,  requiring  a  notice 
of  20  days,  a  notice  of  at  least  14  days  should  have  been 
given  by  publication  in  two  newspapers.  The  theory  that 
the  court,  on  its  own  motion,  might  have  filled  the  va- 
cancy, and  that  for  that  reason  no  notice  was  necessary, 
seems  inapplicable,  for  the  simple  reason  that  in  point  of 
fact  the  court  did  not  act  upon  its  oavh  motion,  but  upon 
the  motion  of  the  counsel  to  the  Corporation,  as  author- 
ized by  §  187  of  the  Act  of  1813,  and  the  order  made  re- 
cites such  fact. 

So,  as  the  4th  section  of  the  Act  of  1839  expressly  re- 
quires, in  addition  to  what  has  been  stated  above,  that 
notice  of  the  presentation  of  any  supplemental  or  amended 
report  shall  be  given  by  publication  for  at  least  twenty 
days,  the  omission  of  the  commissioners  to  give  such 
notice  would  seem  to  constitute  another  irregularity. 

Even  if  it  be  conceded,  however,  that  in  the  respects 
indicated,  legal  irregularities  have  been  committed,  it  does 
not  follow  that  in  consequence  thereof  the  plaintiff  is 
entitled  to  the  relief  demanded. 

Formerly,  it  is  true,  the  rule  was  that  in  street  improve- 


8 


ment  cases  the  provisions  of  law  must  be  strictly  followed, 
and  that  any  departure  from  regularity  is  fatal  thereto. 

Sharp  vs.  Spier,  4  Hill,  76. 

Sharp  vs.  Johnson,  4  Hill,  96. 

The  doctrine  laid  down  was.  that  where  lands  are  taken 
under  a  statute  authority,  in  derogation  of  the  common 
law,  every  requisite  of  the  statute  having  the  semblance 
of  benefit  to  the  owner,  must  be  strictly  complied  with. 
To  the  same  effect  are, 

Striker  vs.  Kelly,  7  Hill,  24. 

Cruger  vs.  Dougherty,  43  N.  Y.,  107. 

Matter  of  Douglass,  46  N.  Y.,  42. 

Newell  vs.  Wheeler,  48  N.  Y.,  486. 

The  People,  ex  reJ.  Ira  0.  Williams,  vs. 
Haines,  49  X.  Y.,  587. 

Nor  do  I  underrate  the  importance  of  notice  to  the 
parties  to  be  affected.  Such  notice  involves  more  than  a 
semblance  of  benefit.  This  has  been  fully  and  firmly 
established  by  a  number  of  cases. 

Sharp  vs.  Spier,  4  Hill,  76. 
Sharp  vs.  Johnson,  4  Hill,  96. 
Cruger  vs.  Hudson  R.  R.  R.  Co..  12  N.  Y., 
190. 

Matter  of  Douglass,  46  X.  V..  42. 
In  re  Smith,  52  N.  Y.,  526. 

But  on  the  7th  of  May,  1872,  an  act  Avas  passed  by  the 
Legislature  (chap.  580  of  Laws  of  1872),  which  provides 
as  follows  : 

§  7.  No  assessment  heretofore  made  or  imposed,  or 
which  shall  hereafter  be  made  or  imposed,  for  any  local 
improvement  or  other  public  work  in  the  said  city,  already 
completed,  or  now  being  made  or  performed,  shall  here- 
after be  vacated  or  set  aside,  for  or  by  reason  of  any  omis- 
sion to  advertise,  or  irregularity  in  advertising,  any  ordi- 
nance, resolution,  notice  or  oilier  proceeding  relative  to  or 
authorizing  the  improvement  or  work  for  which  such  as- 
BeBsmenl  shall  have  been  made  or  imposed,  or  for  propo- 
sals to  do  the  work,  or  for  or  by  reason  of  the  omission  of 


9 


any  officer  to  perform  any  duty  imposed  upon  him,  or  for 
or  by  reason  of  any  defect  in  the  authority  of  any  depart- 
ment or  officer  upon  whose  action  the  assessment  shall  in 
any  manner  or  to  any  extent  depend  ;  or  for  or  by  reason 
of  any  omission  to  comply  Avith  or  carry  out  any  detail  of 
any  law  or  ordinance  ;  or  for  or  by  reason  of  any  irregu- 
larity or  technicality,  except  only  in  cases  in  which  fraud 
shall  be  shown,  and  in  cases  of  assessment  lor  repaying 
any  street  or  public  place,  upon  property  for  which  an  as- 
sessment has  once  been  paid  for  paving  the  same  street  or 
public  place;  and  all  property  in  said  city  benefited  by 
any  improvement  or  other  public  work  already  completed 
or  now  being  made  or  performed,  except  as  aforesaid,  shall 
be  liable  to  assessment  for  such  improvement  or  work ; 
and  all  assessments  for  any  such  improvement  or  other 
public  work  shall  be  valid  and  binding,  notwithstanding 
any  such  omission,  irregularity,  defect  in  authority  or 
techicality. 

The  effect  of  this  statute  was  considered  by  the  Court 
of  Appeals  in  the  case  of  Win.  C.  Lennon  et  ah  vs.  The 
Mayor,  &c,  of  X.  Y.  (not  yet  reported),  and  it  was  there 
held  that,  by  the  passage  of  the  act,  it  was  intended  to 
abrogate,  as  to  the  class  of  assessments  therein  referred 
to,  not  only  the  summary  remedy  afforded  by  chapter  338 
of  the  Laws  of  1858,  but  also  the  remedy  by  bill  in  equity. 
"  The  prohibition,"  says  Kapallo,  J.,  in  delivering  the 
opinion  of  the  court,  "  is  general  and  not  confined  to  any 
particrlar  form  of  proceeding,  and  the  saving  clause  at  the 
end  of  the  section  indicates  that  the  Legislature  intended 
it  to  apply  to  suits  as  well  as  to  special  proceedings.  That 
saving  clause  declares  that  nothing  in  the  section  con- 
tained shall  affect  any  suit  or  proceeding  to  set  aside  an 
assessment  commenced  before  the  first  day  of  January, 
1872.  This  clearly  implies  that  the  act  is  intended  to 
affect  suits  commenced  after  that  date."  It  was  also  held 
that  it  was  competent  for  the  Legislature  to  deprive  the 
courts  of  the  power  to  declare  assessments  null  and  void 
for  irregularity,  and  to  restrain  their  collection,  and  to  de- 
prive parties  of  the  benefit  of  this  form  of  remed}^. 

There  is  nothing,  therefore,  in  the  objections  that  have 
been  so  far  considered. 
2 


10 


The  plaintiff  also  contends  that  the  report  of  the  com- 
missioners, and  its  confirmation  by  the  Supreme  Court, 
were  in  violation  of  section  7  of  the  first  article  of  the 
Constitution  of  1846,  which  provides,  that  when  private 
property  shall  be  taken  for  any  public  use,  the  compensa- 
tion to  be  made  therefor,  when  such  compensation  is  not 
made  by  the  State,  shall  be  ascertained  by  a  jury,  or  by 
not  less  than  three  commissioners  appointed  by  a  court  of 
record,  as  shall  be  prescribed  by  law. 

This  point  presents  a  grave,  close  and  interesting  ques- 
tion, which,  on  account  of  its  importance,  I  shall  discuss 
somewhat  at  length. 

The  widening  and  straightening  of  Broadway  involved 
the  taking  of  land  for  public  use,  the  ascertainment  of 
the  compensation  to  be  made  for  the  land  so  taken,  and 
the  making  of  awards  therefor  ;  and  the  assessments  levied 
upon  plaintiff's  lots  were  based  upon  the  awards  made  by 
the  commissioners  and  the  expenses  of  their  proceedings, 
and  all  the  assessments  made  by  said  commissioners  were 
for  no  other  amounts  than  for  compensation  for  lands 
and  buildings  so  taken  and  the  expenses  of  the  proceed- 
ings. 

The  right  to  take  private  property  for  public  purposes 
does  not  depend  upon  any  express  provision  in  the  charter 
of  government,  but  is  an  inherent  attribute  of  sovereignty 
existing  in  every  independent  State.  Its  existence  with 
us  has  never  depended  upon  our  written  constitutions, 
though  we  turn  to  them  whenever  we  are  in  search  of 
limitations  upon  the  exercise  of  the  power. 

As  shown  by  Mr.  Justice  Ruggles  in  The  People  v. 
The  Mayor,  &c,  of  Brooklyn,  4  N.  Y.  (4  Comst.).  411). 
private  property  may  be  constitutionally  taken  for  public 
use  in  two  modes:  that  is  to  say,  by  taxation  and  by  right 
of  eminent  domain.  These  are  rights  which  the  people 
collectively  retain  over  the  property  of  individuals. 

The  right  of  taxation  and  the  right  of  eminent  domain 
rest  substantially  on  the  same  foundation.  Compensa- 
tion is  made  when  private  property  is  taken  in  either  way. 
Money  is  property.  Taxation  takes  it  for  public  use, 
and  the  tax-payer  receives,  or  is  supposed  to  receive  his 
just  compensation  in  the  protection  which  government 


11 


affords  to  his  life,  liberty  and  property,  and  in  the  in- 
crease of  the  value  of  his  possessions  by  the  use  to  which 
the  government  applies  the  money  raised  by  the  tax. 
Taxation  exacts  money  or  services  from  individuals  as 
and  for  their  respective  shares  of  contribution  to  any 
public  burthen. 

Private  property  taken  for  public  use  by  right  of 
eminent  domain,  is  taken  not  as  the  owner's  share  of 
contribution  to  a  public  burthen,  but  as  so  much  beyond 
his  share. 

Special  compensation  is  therefore  to  be  made  in  the 
latter  case,  because  the  government  is  a  debtor  for  the 
property  so  taken ;  but  not  in  the  former,  because  the 
payment  of  taxes  is  a  duty  and  creates  no  obligation  to 
repay,  otherwise  than  in  the  proper  application  of  the 
tax. 

Taxation  operates  upon  a  community,  or  upon  a  class 
of  persons  in  a  community,  and  by  some  rule  of  apportion- 
ment. 

The  exercise  of  the  right  of  eminent  domain  operates 
upon  an  individual,  and  without  reference  to  the  amount 
oi-  value  exacted  from  any  other  individual  or  class  of  in- 
dividuals. 

Money  cannot  be  exacted  by  the  government  by  right 
of  eminent  domain,  excepting,  perhaps,  for  the  direct  use 
of  the  State  at  large,  and  when  the  State  at  large  is  to 
make  the  compensation,  for  the  exigencies  of  a  State  go- 
vernment can  seldom  require  the  taking  of  money  by 
virtue  of  this  power  even  in  time  of  war,  and  never  in 
time  of  peace.  The  framers  of  the  constitution  could  not 
therefore  have  intended  to  delegate  to  municipal  corpora- 
tions the  right  of  taking  money  under  this  power,  because 
it  is  entirely  unnecessary. 

The  right  to  determine  the  time,  occasion  and  extent 
of  the  exercise  of  either  of  these  two  powers  is  vested  ex- 
clusively in  the  legislature,  and  is  unlimited  except  so  far 
as  it  is  restrained  by  some  constitutional  provision.  It  is  a 
right  which  maybe  abused,  but  as  has  been  remarked  by 
chief  Justice  Marshall  in  the  case  of  The  Providence 
Bank  v.  Billings,  4  Peters,  514,  the  interest,  wisdom  and 
justice  of  the  representative  body,  and  its  relations  with  its 


12 

constituents,  furnish  the  only  security  against  unjust  and 
excessive  taxation,  as  well  as  against  unwise  legislation. 

The  amendments  to  the  Constitution  of  the  United 
States;  adopted  by  Congress  during  its  first  session,  and 
afterwards  sanctioned  by  the  requisite  number  of  States, 
to  the  effect  that  no  person  shall  be  deprived  of  his  proper- 
ty without  due  process  of  law;  that  private  property  shall 
not  be  taken  for  public  use  without  just  compensation  ; 
and  that  in  suits  at  common  law,  where  the  value  in  con- 
troversy shall  exceed  twenty  dollars,  the  right  of  trial  by 
jury  shall  be  preserved — are.  as  has  been  repeatedly  held, 
not  restrictions  upon  the  legislative  power  of  the  several 
States,  but  they  wer^  intended,  as  clearly  appears  from  the 
preamble  prefixed  to  them,  to  be  restrictive  upon  the 
government  of  the  United  States  and  its  officers. 

So  it  has  been  held  in  quite  a  number  of  cases,  that  the 
provisions  contained  in  the  Constitution  of  the  State  of 
New  York — that  no  member  of  the  State  shall  be  deprived 
of  any  of  the  rights  or  privileges  secured  to  any  citizen 
thereof,  unless  by  the  law  of  the  land  or  the  judgment  of 
his  peers  :  and  that  no  person  shall  be  deprived  of  proper- 
ty without  due  process  of  law — are  not  limitations  upon 
the  power  of  taxation  vested  in  the  Legislature;  and  that 
the  imposition  of  a  tax,  or  of  an  assessment  as  a  tax,  does 
not  deprive  the  citizen  of  any  rights  or  property  within 
the  true  intent  and  meaning  of  these  provisions.  The 
taxing  power  of  the  Legislature  for  public  purposes  is, 
therefore,  unlimited,  except  as  specifically  restrained  in 
the  Constitution.  These  restraints  are  to  be  found  in  £  § 
12,  \o  and  14  of  Article  VII.  They  prescribe  the  form  in 
which  every  statute  which  imposes,  continues  or  revives  a 
tax,  shall  be  clothed,  and  the  manner  in  which  it  is  to  be 
put  upon  its  final  passage.  Provision  is  also  made  for  the 
irrepeal ability  of  certain  tax  laws  passed  ho  secure  certain 
debts  of  the  State.  These  restraints  do  not  in  anyway 
affect  the  questions  arising  from  the  imposition  of  taxes, 
which  are  to  be  considered  in  this  case.  For  the  purposes 
of  this  case,  therefore,  not  only  the  power  of  taxation,  but 
also  the  power  to  apportion  taxes,  is  wholly  unlimited, 
and  such  apportionment  is  to  be  regulated  wholly  by  legisla- 
tive, and  not  by  judicial  discretion.    From  t  his  it  follows 


13 


that  taxation  may  be  general  or  local ;  that  the  assess- 
ment of  lands  benefited  by  a  1  cal  improvement  not  in- 
volving the  taking  of  land,  is  an  exercise  of  the  power  of 
taxation,  and  not  of  the  power  of  eminent  domain ;  and 
that  the  question  whether  lands  so  assessed  are  benefited  by 
the  improvement,  is  one  exclusively  for  the  Legislature. 

People  v.  The  Mayor,  &c,  of  Brooklyn.  4 
Comst.,  419. 

Litchfield  v.  Ve  non,  41  X.  Y.,  123. 

In  the  matter  of  Louis  Van  Antwerp  to  vacate  an  as- 
sessment in  the  city  of  Brooklyn  (not  yet  reported),  says 
Buggies,  J.,  in  the  first  named  case  :  There  never  was  any 
just  foundation  for  saying  that  local  taxation  must  neces- 
sarily be  limited  by  or  co-extensive  with  any  previously 
established  district.  It  is  wrong  that  a  few  should  be 
taxed  for  the  benefit  of  the  whole  ;  and  it  is  equally  wrong- 
that  the  whole  should  be  taxed  for  the  ben  fit  of  a  few. 
No  one  town  ought  to  be  taxed  exclusively  for  the  pay- 
ment of  county  expenses;  and  no  county  ought  to  be 
taxed  for  the  expenses  incurred  for  the  benefit  of  a  single 
town.  The  same  principle  of  justice  requires  that  where 
taxation  for  any  local  object  benefits  only  a  portion  of  a 
city  or  town,  that  portion  only  should  bear  the  burthen. 
There  being  no  constitutional  prohibition,  the  Legislature 
may  create  a  district  for  that  special  purpose,  or  they  may 
tax  a  class  of  lands  or  persons  benefited,  to  be  designated 
by  the  public  agents  appointed  for  that  purpose,  without 
reference  to  town,  county  or  district  lines.  General  taxa- 
tion for  such  local  objects  is  manifestly  unjust.  It 
burthens  those  who  are  not  benefited,  and  benefits  those 
who  are  not  burthened.  This  injustice  has  led  to  the 
substitution  of  street  assessments  in  place  of  general 
taxation ;  and  it  seems  impossible  to  deny  that  in  the 
theory  of  their  apportionment  they  are  far  more  equitable 
than  general  taxation  for  the  purpose  they  are  designed 
for. 

He  then  shows  that  in  the  colony  and  State  of  N  ew 
York,  the  system  of  taxation  for  local  purposes  by  assess- 
ing the  burthen  according  to  the  benefit,  has  been  in 
force  for  more  than  one  hundred  and  fifty  years.    It  was 


14 


applied  to  highways  in  the  county  of  Ulster  in  1691 
(Bradf.  Laws,  45).  The  power  was  given  to  the  corpora- 
tion of  New  York  in  the  same  year  (Id.  9).  This  statute 
remained  in  force  in  1773,  when  Van  Schaack's  edition  of 
the  statutes  was  published,  and  no  evidence  of  its  repeal 
is  found  until  1787,  when  it  seems  to  have  been  revised 
and  its  provisions  re-enacted  under  the  State  constitution 
(Van  Schaack's  L.,  8,  9  ;  2  Jones  &  Var,  152;  1  Greenl., 
443).  The  colonial  statute  was  doubtless  in  force  wrhen 
the  State  constitution  was  adopted.  It  is  not  unworthy 
of  remark,  that  in  April,  1691,  a  bill  of  rights  was  passed 
for  the  security  and  protection  of  the  people  of  the  province. 
The  statute  authorizing  the  assessment  first  mentioned  was 
passed  afterwards  during  the  same  year.  In  January 
1787,  an  act  was  passed  declaring  the  rights  of  the  citizens 
of  the  State,  and  prohibiting,  among  other  things,  that  any 
person  should  be  deprived  of  his  property,  except  by  due 
process  of  law.  The  statute  of  1787,  authorizing  street 
assessments  in  the  city  of  New  York,  was  passed  by  the 
same  Legislature,  and  sanctioned  by  the  same  counsel  of 
revision  which  had  assented  to  the  bill  of  rights.  Street 
assessments  upon  the  same  principle  were  authorized  in 
the  city  of  New  York  in  1793  (3  Greenl.,  58),  and  in  1795 
(id.,  244.  245),  and  in  1796  (id.,  333,  334),  and  in  1801  (2 
K.  &  R.,  130),  and  in  1813  (2  R.  L.,  407).  The  corpora- 
tion of  New  York  have  had  and  exercised  authority  to 
make  street  assessments  from  the  infancy  of  that  city. 
Similar  powers  have  been  conferred  on  nearly  every  city, 
and  on  many  of  the  villages  in  this  State.  It  has  also  been 
applied  to  highways,  to  turnpike  roads  and  to  draining  of 
marshes.  This  system  of  taxation  was  in  force  at  the  time 
of  the  making  and  adoption  of  our  first,  second  and  third 
constitutions,  and  has  stood  in  our  statute  books  along 
with  the  Constitutions  from  1777  until  now,  without  pro- 
hibition or  restraint.  Mr.  Justice  Ruggles  also  adverts 
at  length  to  the  attempts  that  were  made  in  the  conven- 
tion of  1846  to  abolish  this  mode  of  taxation,  which, 
though  unsuccessful,  nevertheless  resulted  in  the  adop- 
tion and  the  incorporation  into  the  present  Constitution 
of  a  section  which  provides  that  "  it  shall  be  the  duty  of 
the  Legislature  to  provide  for  the  organization  of  cities 


15 


and  incorporated  villages,  and  to  restrict  their  powers  of 
taxation,  assessment,  borrowing  money,  contracting  debts 
and  loaning  their  credit,  so  as  to  prevent  abuses  in 
assessments,  and  in  contracting  debt  b)T  such  municipal 
corporations."    (Art.  VIII.,  §  0.) 

Instead  of  abolishing  the  system  of  assessments,  this 
section  of  the  Constitution  refers  it  to  the  Legislature  for 
the  correction  of  its  abuses,  and  although  the  Legislatures 
that  have  met  of  late  years  may  not  have  seen  fit  to  exer- 
cise the  duty  thus  imposed  as  effectually  and  as  often  as 
circumstances  required,  but,  on  the  contrary,  by  repeatedly 
passing  enactments  fur  the  validation  of  assessments  that 
were  null  and  void  for  unlawful  acts  or  omissions  on  the 
part  of  the  official  charged  with  the  duty  of  making  them, 
pursuant  to  the  requirements  of  written  law,  seem  to  have 
evinced  a  constant  readiness  and  willingness  to  pardon, 
by  special  legislation,  the  most  migrant  violation  of  clearly 
prescribed  official  duty,  and  by  such  course,  have  invited, 
rather  than  discouraged,  official  recklessness  and  disregard 
of  positive  law.  Courts  have  no  right  to  interfere,  as  long 
as  no  constitutional  provision  is  violated  thereby.  "It 
cannot  be  denied/'  says  Chief-Justice  Church  in  the  case 
of  Lewis  Van  Antwerp.  Jr.  (not  yet  reported),  "that  ex- 
perience has  developed  alarming  abuses  in  the  exercise  of 
this  power  (?'.  e.,  of  assessment),  and  it  is  not  improbable 
that  the  safety  of  the  public  may  require  that  some  con- 
stitutional restrictions  shall  be  interposed  ;  but  until  this 
is  done,  the  judiciary  cannot  control  its  exercise." 

If,  therefore,  the  assessments  now  under  consideration 
had  been  laid  simply  in  the  exercise  of  the  power  of  taxa- 
tion, the  complaint  of  the  plaintiff  would  not  be  well 
founded. 

But  the  widening  and  straightening  of  Broadway,  also 
involved  the  taking  of  land,  which  could  only  be  taken 
under  the  power  of  eminent  domain. 

The  existence  of  the  power  of  eminent  domain,  as  has 
hereinbefore  been  shown,  has  never  depended  upon  our 
written  constitutions,  although  by  those  of  1821  and  1846 
its  exercise  is  declared  to  be  limited  upon  the  condition  of 
making  just  compensation.    (Const,  of  1821,  Art.  VII,  § 


16 


7;  Const,  of  1846,  §  6.)  The  Constitution  of  1777  con- 
tained no  similar  provision  ;  yet  no  one,  from  the  founda- 
tion of  the  government,  ever  doubted,  from  the  silence  of 
the  Constitution  on  the  subject,  the  existence  of  the  right, 
or  denied  the  existence  of  the  duty  founded  on  natural 
equity,  of  making  compensation.  But  the  mode  of  ascer- 
taining the  compensation  remained  wholly  unrestricted 
until  the  adoption  of  the  Constitution  of  184(3.  Up  to 
that  time  it  was  left  to  the  discretion  of  the^egislature  to 
regulate  such  mode  according  to  the  exigencies  of  parti- 
cular cases,  and  in  such  manner  as  seemed  best  for  each 
locality.  As  the  mode  of  ascertaining  damages  by  com- 
missioners had  at  all  times  been  resorted  to  in  this  State, 
the  Legislature  almost  invariably  adopted  that  mode  in 
matters  relating  to  street  improvements  in  the  city  of 
New  York,  and  it  was  retained  in  the  Act  of  1813,  which 
confers  general  authority  upon  the  Mayor,  Aldermen  and 
Commonalty  to  open  and  improve  streets  and  avenues, 
and  which  was  intended  to  form,  and  together  with  the 
amendments  that  have  since  been  made  to  it,  does  form  a 
complete  system  of  law  upon  that  subject 

The  said  act  provides  that  whenever  and  as  often  as  the 
Mayor,  Aldermen  and  Commonalty  shall  be  desirous  to 
open,  &c,  the  whole  or  any  particular  section  or  part 
of  any  of  the  streets  or  avenues  therein  referred  to,  it 
shall  be  lawful  for  them  to  cause  the  same  to  be  done ; 
that  the  lands,  tenements  and  hereditaments  required  for 
the  purpose  of  opening,  &c,  the  same,  may  be  taken  for 
such  purpose,  and  that  compensation  and  recompense  be 
made  therefor,  in  the  manner  pointed  out  by  subsequent 
parts  of  the  act  (§  177).  The  next  section  declares 
that  whenever  any  lands  are  so  required  to  be  taken,  the 
Mayor,  &c.,  of  New  York,  may  apply  to  the  Supreme 
Court  for  the  appointment  of  commissioners,  and  the  said 
court  may  thereupon  nominate  and  appoint  three  discreet 
and  disinterested  persons,  being  citizens  of  the  United 
States,  commissioners  of  estimate  and  assessment,  for  the 
purpose  of  performing  the  duties,  &c,  in  that  behalf  pre- 
scribed. These  commissioners,  after  taking  an  oath  faith- 
fully to  perform  their  duty,  arc  to  view  the  premises,  cause 
all  necessary  maps  and  surveys  to  be  made,  and  make  their 


17 


estimate  and  assessment.  This  is  to  be  an  estimate  of  loss 
and  damage  to  be  awarded  to  the  owners  of  the  land  re- 
quired to  be  taken  for  the  street  or  avenue,  and  an  esti- 
mate and  assessment  of  the  benefit  and  advantage  which 
the  opening  of  such  street  or  avenue  will  be  to  certain 
lands  not  required  to  be  taken,  but  contiguous  or  adjacent 
thereto  (§  178).  The  act  also  prescribes  the  manner  in 
which  the  commissioners  are  to  proceed,  the  notice  of  the 
different  steps  to  be  taken  by  the  commissioners  to  which 
persons  whose  rights  are  to  be  affected,  are  from  time  to 
time  entitled  during  the  progress  of  the  proceeding,  the 
mode  in  which  such  notice  is  to  be  given,  the  form  of,  and 
the  matters  to  be  embraced  in  the  final  report  to  be  made  by 
the  commissioners  to  the  Supreme  Court,  the  time  and 
manner  of  its  presentation,  and  the  notice  to  be  given  to 
the  public  of  such  presentation.  Section  188  furiher  pro- 
vides, that  in  all  and  every  case  it  shall  be  competent  and 
lawful  for  any  tiro  of  such  commissioners  to  proceed  to, 
and  execute  and  perform  the  trusts  and  duties  of  their 
said  appointment,  and  their  acts  shall  be  as  valid  and 
elfectual  as  the  acts  of  all  the  commissioners  if  they  had 
acted,  would  have  been  ;  and  also,  that  in  all  cases  the 
acts,  decisions  and  proceedings  of  the  major  part  of  such 
of  the  commissioners  as  shall  be  acting,  shall  always  be  as 
binding,  valid  and  effectual,  as  if  the  said  commissioners 
named  and  appointed  for  such  purposes,  had  all  concurred 
and  joined  therein.  And  §  178  authorizes  the  court  to 
confirm  a  report  signed  by  any  two  of  the  commissioners. 

So  the  4th  section  of  chap.  483  of  the  Laws  of  1802, 
authorizes  any  two  of  the  commissioners  to  sign  the  copies 
of  the  report  that  are  by  law  required  to  be  filed,  and  to 
present  their  report  to  the  court. 

But  by  the  Constitution  of  1846,  it  was  not  only  ex- 
pressly provided  that  private  property  shall  not  be  taken 
for  public  use  without  just  compensation  (Art.  I,  §  (5),  but 
also,  that  whenever  private  property  is  thus  taken,  and  the 
compensation  is  not  made  directly  by  the  State,  such  com- 
pensation shall  be  ascertained  by  a  jury,  or  by  not  less  than 
three  commissioners  appointed  by  a  court  of  record,  as 
sh  til  bj  Ln\33orib3l  by  lav  (Art.  1,  §  7).  The  last  named 
section  then  goes  on  to  provide,  in  addition,  that  private 
3 


18 


roads  may  be  opened  in  the  manner  to  be  prescribed  by 
law;  but  in  every  case  the  necessity  of  the  road,  and  the 
amount  of  all  damage  to  be  sustained  by  the  opening 
thereof,  shall  be  first  determined  by  a  jury  of  freeholders, 
and  such  amount,  together  with  the  expenses  of  the  pro- 
ceeding, shall  be  paid  by  the  person  to  be  benefited.  The 
word  "jury,"  as  thus  used  by  the  Constitution,  has  since 
received  a  judicial  construction  in  the  case  of  Cruger  v. 
The  Hudson  B.  K.  E.  Co.,  12  1ST.  Y.,  190,  where  it  was 
held  that  in  view  of  the  prior  practice  applicable  to  such 
cases,  such  word  did  not  necessarily  import  a  tribunal  con- 
sisting of  twelve  men  acting  only  upon  a  unanimous  de- 
termination, but  that  it  was  used  to  describe  a  body  of 
jurors  of  an  indefinite  number,  and  deciding  by  majorities 
or  otherwise  as  the  Legislature  in  each  instance  might 
direct.  This  was  in  effect  a  reiteration  of  the  doctrine 
laid  down  by  the  chancellor,  in  Livingston  v.  The  Mayor, 
&c,  of  New  York,  8  Wend.,  85,  namely,  that  the  provision 
of  the  Constitution  relative  to  the  right  of  trial  by  jury, 
relates  to  the  trial  by  courts  of  justice  of  issues  of  fact  in 
civil  and  criminal  proceedings  ;  that  it  has  no  relation  to 
cases  involving  the  taking  of  land  for  purposes  of  public 
improvement,  and  that  although  damages  in  the  class  of 
cases  last  mentioned,  have  frequently  been  ascertained  by 
the  oaths  of  twelve  freeholders,  that  fact  did  not  consti- 
tute the  said  proceedings  jury  trials,  within  the  spirit  or 
meaning  of  the  constitutional  provision  which  preserves 
the  right  of  trial  by  jury. 

In  case,  however,  commissioners  are  to  be  appointed,  the 
Constitution  itself  pivscribes  and  fixes  their  minimum 
number.    The  language  is  "not  less  than  three." 

The  first  question,  therefore,  which  arises  under  that 
provision,  is  whether  the  concurrence  of  all  three  is  ne- 
cessary, or  whether  it  is  still  competent  for  the  Legisla- 
ture to  declare  that  the  acts  and  the  decisions  of  a  majority 
sli all  be  sufficient. 

Certain  it  is  that  by  a  further  clause  contained  in  the 
17  th  section  of  the  same  article  of  the  Constitution,  all 
such  acts  of  the  Legislature,  and  parts  thereof,  as  were 
repugnant  to  fundamental  law  as  embodied  in,  and  pro- 
claimed by  the  Constitution,  were  abrogated.  Such. 


19 


indeed,  would  have  been  the  effect  without  any  express 
provision,  as  "  leg  is  pasterioras  priores  confrarias  abro- 
gant" 

On  confirming  the  report  of  Messrs.  Jones  and  Wood, 
Mr.  Justice  Gilbert,  at  Special  Term,  and  upon  the  au- 
thority of  the  Church  street  extension,  case,  49  Barb., 
-±55,  held  that  such  concurrence  was  not  accessary.  But 
that  case  is  no  authority  upon  this  point.  The  objection 
raised  in  that  case  was  "  that  one  of  the  commissioners 
had  never  conferred  or  consulted  with  the  others,  and  had 
not  signed  the  report."'  It  does  not  appear  anywhere  that 
such  objection  was  based  on  the  Constitutional  provision. 
If  it  was,  then  the  case  of  The  People  v.  Batchellor,  22 
N.  Y.,  130,  upon  the  strength  of  which  it  was  disposed  of, 
and  which  had  arisen  solely  under  p.  502  of  the  Laws  of 
1855,  was  not  in  point  at  all.  The  fact  that  the  case  of 
Batchellor  was  the  only  authority  cited  for  the  decision 
that  was  made,  would  seem  to  indicate  that  the  objection 
was  raised  under  the  Revised  Statutes  exclusively ;  nor 
does  an  examination  of  the  reasoning  of  the  court  furnish 
any  other  indication.  Says  Leonard,  P.,  J. :  "  It  is  also 
objected  that  one  of  the  commissioners  has  never  con- 
ferred or  consulted  with  the  others,  and  has  not  signed 
the  report.  If  the  fact  sustained  this  objection  to  the 
extent  stated,  it  would  be  fatal  to  the  validity  of  the  re- 
port. It  conclusively  appears,  however,  that  the  commis- 
sioner referred  to  appeared  and  took  the  oath  of  office  ; 
that  he,  with  the  other  commissioners  agreed  upon  future 
meetings  at  a  fixed  day  of  the  week,  and  he  did  meet  with 
the  others  on  several  occasions,  and  transacted  some  busi- 
ness. He  was  notified  in  writing  of  several  meetings.  He 
was  notified  orally,  and  made  partial  promise  to  attend  par- 
ticular meetings.  He  did  not  resign,  or  notify  the  other 
commissioners  that  he  would  not  act  in  the  matter.  The 
board  of  commissioners  was  regularly  organized,  and  it 
does  not  appear  that  the  two  who  have  signed  the  report 
were  informed  that  the  other  member  of  the  board  objected 
to  act  or  confer  with  them  (unless  it  was  to  be  inferred 
from  his  neglect  to  be  present  at  their  meetings),  until  his 
final  refusal  to  sign  the  report."' 

The  General  Term  of  the  Supreme  Court  on  affirming 


20 


the  order  of  confirmation  made  by  Mr.  Justice  Gilbert, 
also  relied  on  the  Church  street  extension  case  as  an  au- 
thority on  the  point,  that  a  concurrence  of  the  three  com- 
missioners is  not  necessary  under  the  Constitution  (63 
Barb.,  591),  and  the  learned  justice  who  delivered  the 
opinion  of  the  court  on  that  occasion,  indulged  in  the  fol- 
lowing reasoning  :  "It  is  urged  that  this  provision,  i.  e., 
Act  of  1813,  §§  188,  178,  is  abrogated  by  the  Constitution 
of  1846,  Art.  I.,  §  7.  That  section  requires  compensation 
to  be  ascertained  by  a  jury,  or  by  not  less  than  three  com- 
missioners. But  in  the  case  of  Cruger  v.  The  H.  R.  R.  R. 
Company,  12  N.  Y.,  190,  it  was  held  that,  notwithstanding 
this  constitutional  provision,  the  Legislature  might  au- 
thorize a  decision  by  a  majority  of  the  jury  appointed  in 
such  cases.  And  if  the  Legislature  can  authorize  a  ma- 
jority of  the  jury  to  decide,  why  can  they  not  authorize  a 
majority  of  the  commissioners  to  do  the  same  thing  ? 
The  cases  are  so  nearly  analogous,  that  we  are  bound  by 
that  decision.  This,  too,  was  the  decision  in  the  Church 
street  case  (49  Barb.,  458)." 

That  the  Church  street  extension  case  does  not  deserve 
this  reverence  as  an  authority  on  the  constitutional  ques- 
tion, I  have  already  shown,  and  in  placing  so  much  re- 
liance upon  the  case  of  Cruger  v.  Hudson  R.  R.  R.  Co., 
the  learned  judge  seems  to  have  overlooked  the  fact  that 
while  the  number  of  which  the  jury  mentioned  in  section 
7,  of  article  I.,  of  the  constitution  is  to  be  composed,  is 
left  to  the  discretion  of  the  legislature,  the  minimum 
number  of  commissioners  is  expressly  limited  to  three. 

But  as  it  is  not  necessary  to  the  decision  of  this  case,  to 
deny  in  toto  the  power  of  the  legislature  to  authorize  a  de- 
cision by  a  majority  of  the  three  commissioners,  I  shall 
refrain  from  a  more  protracted  investigation,  and  will  at 
once  proceed  to  examine  the  manner  in  which  the  major- 
ity may  constitutionally  arrive  at  a  decision. 

To  arrive  at  a  proper  conclusion  in  that  respect,  it  will 
be  well  to  keep  in  mind  that  thus  far  the  following  two 
propositions  have  been  conclusively  established,  viz.  : 

I.  So  far  as  the  provisions  of  the  Act  of  1813  authorize 
a  report  to  be  made  and  presented  by  any  two  of  the  com- 


21 


missioners,  without  conference  or  consultation  with  the 
third  commissioner,  and  to  he  confirmed  by  the  court, 
they  have  been  abrogated  by  the  constitution  of  1846,  as 
to  cases  involving  the  taking  land. 

II.  So  much  of  the  Act  of  1862  (chap.  483),  as  author- 
izes like  proceedings  by  only  two  of  the  commissioners,  is 
unconstitutional  and  void  as  to  cases  involving  the  taking 
of  land. 

How  then  must  the  majority  arrive  at  a  decision  ? 

At  common  law  the  rule  was  that,  where  several  persons 
constitute  a  judicial  body,  a  tribunal  appointed,  by  law  to 
act  in  matters  of  public  concern,  they  must  all  convene 
and  act.  When  so  convened  and  acting,  a  majority  may 
decide,  notwithstanding  the  express  dissent  of  the  minor- 
ity. This  rule,  however,  was  confined  to  officers  or  per- 
sons clothed  with  authority  to  perform  or  discharge  a 
public  duty.  In  cases  of  private  arbitration  and  matters 
of  a  private  nature,  it  was  required  that  the  whole  body 
should  be  unanimous.  Parrot  t  v.  The  Knickerbocker  Ice 
Co.,  8  Abb.  Pi\,  X.  S;3  234,  and  cases  there  cited. 

The  revised  statutes  in  force  at  the  time  of  the  adoption 
of  the  constitution  of  1846,  provided  and  still  provide, 
that  "Whenever  any  power,  authority  or  duty  is  confided 
by  law  to  three  or  more  persons,  and  whenever  three  or 
more  persons  or  officers  are  authorized  or  required  by  law  to 
perform  any  act,  such  act  may  be  done,  and  such  power, 
authority  or  duty  may  be  exercised  and  performed  by  a 
majority  of  such  persons  or  officers,  upon  a  meeting  of  all 
the  persons  or  officers  so  entrusted  or  empowered,  unless 
special  provision  is  otherwise  made  "  (2  Kev.  St..  555>  sec. 
27).  This  provision  is  found  under  the  title  of  "General 
miscellaneous  provisions  concerning  suits  and  proceedings 
in  civil  cases." 

Even  if  it  be  assumed,  therefore,  for  the  purposes  of  this 
case,  that  Mr.  Justice  Gilbert  was  correct  in  holding  that, 
as  section  17,  of  the  first  article  of  the  constitution,  con- 
tinued certain  parts  of  the  common  law,  and  of  the  stat- 
utes then  in  force  in  this  State,  which  were  not  repugnant 
to  the  constitution ;  that  among  others  the  rule  of  com- 


22 


mon  law  above  referred  to.  and  the  said  27th  section  of 
the  Revised  Statutes  were  thus  continued,  and  that  for 
these  reasons  the  constitutional  provision  that  the  com- 
pensation shall  be  made  by  not  less  than  three  commis- 
sioners, should  be  construed  in  the  light  which  the  said 
rule  and  the  said  section  throw  upon  it ;  and  that  when 
so  construed,  there  is  no  constitutional  prohibition  against 
the  adoption  of  the  determination  of  the  majority,  it 
would  still  be  necessary  for  three  commissioners  to 
meet  and  to  consult  in  relation  to  the  matters  to  be  pre- 
sented by  their  final  report,  in  order  that  each  may  have 
the  benefit  of  the  views  of  his  colleagues  to  aid  him  in 
arriving  at  a  proper  conclusion.  Surely  the  constitution 
made  no  special  provision  to  the  contrary,  when  it  con- 
clusively fixed  the  number  of  the  commissioners;  and  the 
rule  as  thus  stated,  is  the  only  logical  deduction  that 
can  be  made  from  the  decision  and  the  reasoning  of 
the  case  of  the  Board  of  Water  Commissioners  of  Cohoes, 
v.  Lansing,  45  N.  Y.,  19.  Says  Rapallo,  J.  :  "The  com- 
pensation in  this  case  was  fixed  and  the  report  made 
by  only  two  persons.  There  was  no  competent  evidence 
that  they  rendered  their  decision  at  a  meeting  at  which 
the  three  were  present,  but  the  proofs  presented  to  the 
court  tended  to  establish  the  contrary.  There  is  no 
ground,  therefore,  upon  which  the  proceeding  can  be  sus- 
tained, even  if  the  rule  that  a  major  it  y  can  decide  is  appli- 
cable to  a  case  of  this  description,  when  less  than  three 
concur  in  a  decision." 

Mr.  Justice  Gilbert  assumed  that  the  three  commis- 
sioners had  met  and  conferred  as  to  the  matters  embraced 
in  the  report  of  the  majority.  "It  abundantly  appears," 
said  he,  "  that  the  dissenting  commissioner"  met  with  his 
colleagues  in  the  legal  sense  of  that  term.  No  formal- 
ity beyond  actual  consultation  is  requisite.  He  attended 
the  meetings  of  the  commissioners  for  several  months, 
and  put  in  a  dissenting  report  at  the  end  of  the  proceed- 
ing.   This  is  quite  sufficient." 

But  I  can  indulge  in  no  such  assumption.  Before  me 
it  has  been  shown  by  uncontradicted  evidence  that,  after 
various  meetings  had  been  held  by  the  three  commission- 
ers, and  an  area  for  assessments  had  been  agreed  upon,  the 


23 


majority ^  Jones  and  Wood,  agreed,  against  the  opposition 
of  Hennessy,  upon  the  the  awards  and  assessments  to  be 
inserted  in  the  preliminary  report ;  Hennessy  thereupon 
refused  to  allow  his  name  to  be  affixed  to  the  notice  of  the 
completion  and  filing  of  such  report,  which  the  other 
commissioners  published,  and  refused  to  attend  subsequent 
meetings.  Notwithstanding  such  refusal,  Jones  and  Wood 
continued  to  act,  and  on  and  after  the  5th  of  October, 
1871,  numerous  meetings  were  held  by  them  alone,  at 
which  the  objections  filed  by  persons  affected  by  the  pro- 
ceeding were  considered  and  disposed  of,  and  awards  for 
damages  were  increased  to  the  extent  of  over  $117,000, 
and  assessments  for  benefit  were  materially  changed,  and 
an  estimate  of  the  expenses  of  the  proceeding,  amounting 
to  over  $135,000,  was  adopted,  and  the  costs  of  the  former 
proceeding,  which  had  been  vacated,  amounting  to  over 
$165,000,  were  adopted  as  part  of  the  general  expenses  of 
the  proceedings  of  the  commissioners,  and  the  clerks  were 
directed  to  prepare  an  amended  report  in  accordance  with 
the  changes  thus  made.  At  none  of  these  meetings  was 
Hennessy  present,  nor  was  he  at  any  time  consulted  as  to 
the  business  that  was  transacted  at  these  meetings.  On 
the  completion  by  the  clerks  of  the  amended  report  as  thus 
directed,  Jones  and  Wood,  without  consulting  Hennessy, 
published  the  notice  of  twenty  days  required  by  law  to  be 
given,  and  therein  stated  that,  as  required  by  the  4th  sec- 
tion of  the  Act  of  18T1,  they  had  completed  their  estimate 
and  assessment ;  that  the  abstract  of  their  proposed  re- 
port, showing  the  awards  made  for  damage,  and  the  assess- 
ments imposed  for  benefit,  had  been  deposited  in  the  office 
of  the  Department  of  Public  Works,  there  to  remain  open 
to  public  inspection  and  examination  until  the  21st  of 
December,  1871,  and  that  on  said  last  named  day,  their 
fin  >1  report,  together  with  their  said  abstract,  would  be 
presented  to  the  Supreme  Court  for  confirmation.  On  the 
21st  of  December,  1871,  Jones  and  Wood  again  met,  and 
in  the  absence  of  Hennessy,  and  without  any  consultation 
had  with  him,  they  signed  the  final  report,  and  thereupon 
presented  it  to  the  court.  Upon  the  hearing  had  on  such 
report,  Hennessy,  without  notice  by  publication  or  other- 
wise, presented  a  minority  report,  which  he  had  prepared 


24 


without  notice  to  or  consultation  with  his  two  colleagues. 
The  contents  of  the  same  have  not  been  disclosed,  but 
from  the  opinion  of  Mr.  Justice  Gilbert,  it  appears  that  in 
it  Hennessy  dissented  from  the  conclusions  arrived  at  by 
his  colleagues.  The  only  action  taken  by  the  court  on 
both  of  said  reports,  was  the  making  of  an  order  referring 
the  majority  report  back  to  the  two  commissioners  who 
had  made  it,  for  revisal  and  correction  in  certain  particu- 
lars indicated  in  an  opinion  tiled  at  that  time.  In  com- 
pliance with  such  order,  the  said  report  was  revised  and 
amended  by  Jones  and  Wood,  and  thereupon  confirmed- 
Hennessy  had  nothing  whatever  to  do  with  making  these 
corrections,  nor  was  he  consulted  in  regard  thereto,  and 
there  is  not  a  particle  of  evidence  in  the  case  from  which 
his  assent  to  the  terms  of  the  report,  which  was  confirmed, 
could  be  implied. 

These  facts  clearly  entitle  the  plaintiff  to  the  relief  de- 
manded, provided : 

(1.)  He  is  in  a  position  to  invoke  the  aid  of  the  consti- 
tutional provision  referred  to,  and  he  has  not  waived  his 
right  so  to  do. 

(2.)  Provided  the  action  will  lie  as  brought;  and 

(3.)  Provided  this  court  has  jurisdiction  of  the  action. 

As  to  the  First  Point: 

On  confirming  the  report  of  the  majority  of  the  com- 
missioners, Mr.  Justice  Gilbert  held,  on  the  authority  of 
the  cases  reported  in  4  Comst.,  420,  and  41  N.  Y.,  139,  and 
the  General  Term,  by  refraining  to  express  an  opinion 
upon  this  point,  may  be  deemed  to  have  ratified  it,  that 
the  provision  of  the  Constitution  invoked  by  the  plaintiff 
has  no  application  to  the  duty  of  the  commissioners  in  fix- 
ing a  district  of  assessment  or  in  apportioning  the  amount 
assessed;  that  that  is  an  exercise  of  the  power  of  taxation 
and  not  of  the  right  of  eminent  domain,  and  that  the 


25 


statute  (Act  of  1813,  section  188)  authorizing  two  com- 
missioners to  perform  the  trusts  and  duties  imposed  on  all, 
govern  this  branch  of  the  case. 

The  first  of  the  two  cases  relied  upon  is  the  case  of  The 
People,  &c,  v.  The  Mayor,  &c,  of  Brooklyn,  hereinbefore 
referred  to.  It  arose  under  the  charter  of  the  city  of 
Brooklyn,  and  related  to  the  grading  and  paving  of  a 
street,  but  did  not  involve  the  taking  of  land.  The  Su- 
preme Court  had  annulled  the  assessment,  holding: 

(1.)  That  the  assessment  was  not  a  lawful  exercise  of 
the  power  of  taxation. 

(2.)  That  money  is  property;  that  it  cannot  be  taken 
from  a  citizen  for  public  use  by  the  right  of  eminent  do- 
main, without  just  compensation,  and  that  the  enhance- 
ment in  value  of  the  relator's  lands,  by  the  grading  and 
paving  of  Flushing  avenue,  is  not  that  just  compensation 
within  the  meaning  of  the  Constitution  ;  and 

('■].)  That  the  money  not  being  taken  by  the  just  exer- 
cise of  either  of  these  powers,  is  taken,  or  exacted,  without 
due  process  of  law,  and  therefore  in  violation  of  the  (>th 
section  of  the  first  article  of  the  Constitution,  and  the 
assessment  is  void. 

These  grounds,  and  no  others,  were  examined  and  over- 
ruled by  the  Court  of  Appeals,  and  the  remarks  of  Mr. 
Justice  Rugglea:  "Noldnd  was  taken  from  the  relators  or 
other  persons  assessed  for  the  making  of  Flushing  avenue; 
the  question,  therefore,  whether  compensation  for  land 
taken  for  such  use  could  be  made  in  estimated  benefits 
does  not  arise,7'  must  consequently  be  read  and  considered 
in  the  light  of  the  claim  advanced  by  the  relators  that  their 
money  was  taken  for  public  use  by  the  exercise  of  the 
right  of  eminent  domain. 

The  second  case  relied  upon  arose  under  the  act  of  April 
19th,  1859,  entitled  "  An  Act  to  provide  for  the  closing  of 
the  entrances  of  the  tunnel  of  the  Long  Island  Railroad 
Company,  in  Atlantic  street,  in  the  city  of  Brooklyn,  and 
restoring  said  street  to  its  proper  grade  and  for  the  relin- 
4 


26 


quishnrent,  by  said  company,  of  its  right  to  use  steam 
power  within  said  city."  Under  this  act  commissioners 
were  authorized  to  enter  into  an  agreement  with  the  rail- 
road for  the  surrender  of  its  franchises  and  road  on  con- 
dition that  the  company  should  be  willing  to  make  a  con- 
tract; and  in  such  case  the  commissioners  were  empowered 
to  levy  assessments  for  the  amount  to  be  paid  to  the  rail- 
road company.  The  statute  expressly  authorized  two  of 
the  commissioners  to  act  for  the  whole.  The  Court  of  Ap- 
peals held  that,  as  the  act  did  not  call  for  the  taking  of 
property  except  pursuant  to  a  contract  to  be  made 
therefor,  andas  the  railroad  company  had  voluntarily  en* 
tered  into  such  contract  and  was  satisfied  with  it,  the  ob- 
jections of  the  relators  who  represented  the  land  assessed 
involved  merely  a  question  of  the  exercise  of  the  taxing- 
power  by  the  Legislature,  and  that  consequently  the  rela- 
tors could  not  raise  a  constitutional  objection  which  the 
railroad  had  the  right  to  waive  and  which  it  had  waived. 

These  two  cases,  therefore,  do  not  sustain  the  decision 
of  the  Supreme  Court  to  the  effect  that  the  plain  tiff  is 
precluded  from  raising  the  objection. 

Now,  the  case  at  bar  involved  in  one  and  the  same  pro- 
ceeding the  compulsory  taking  of  land  by  right  of  emi- 
nent domain,  and  the  assessment  of  the  compensation  to 
be  awarded  for  the  land  thus  taken  upon  the  property 
deemed  benefited,  and  the  plaintiff  has  established  not 
only  that  the  compensation  was  awarded  in  an  illegal  and 
unconstitutional  manner,  but  also  that,  by  reason  of  this 
infringement  of  the  Constitution,  he  has  been  subjected 
to  increased  taxation.  The  awards  and  assessments  were 
adjudicated  upon  by  only  two  commissioners  in  one  and 
the  same  report,  and  they  are  therefore  so  indissolubly 
connected  that,  unless  the  report,  with  the  evidence  now 
before  me,  can  be  upheld  under  the  Constitution  and  the 
Revised  Statutes,  it  cannot,  in  my  judgment,  be  upheld 
under  the  Act  of  1813  or  the  Act  of  1862,  as  an  exercise  of 
the  power  of  taxation.  It  is  too  clear  for  argument,  iliat 
it  cannot  be  upheld  as  against  a  person  whose  land  was 
taken.  W  hy.  then,  should  i!  he  upheld  as  against  the 
plaintiff  in  the  face  of  the  proof  which  he  lias  given  that 
lie  sustained  special  and  material  damage  by  reason  there- 


27 


of,  and  in  the  face  of  the  admission  that  has  been  made, 
that  proceedings  have  been  taken  by  the  defendants  for  the 
collection  of  the  assessments,  and  that  plaintiff's  lots 
are  liable  to  be  sold  therefor.  Does  not  this  proof  rebut 
the  presumption  upon  which  assessments  for  a  public  im- 
provement not  involving  the  taking  of  land,  have  been 
heretofore  held  as  a  legitimate  exercise  of  the  power  of 
taxation?    Most  assuredly  it  does. 

In  view  of  the  high  rate  of  the  general  taxation  to  which 
holders  of  real  property  within  the  city  and  county  of  Xew 
York  are  already  subjected  and  the  enormous  size  to  which 
the  debt  of  the  city  has  been  swelled  within  the  last  few 
years,  I  have  diligently  searched  for  some  tangible  ground 
on  which  to  uphold  the  assessments  in  question,  but  have 
been  unable  to  discover  any  to  which  I,  as  a  court,  could 
give  effect.  It  is  a  familiar  principle,  that  in  the  deter- 
mination of  rights,  courts  have  nothing  to  do  with  conse- 
quences, and  it  being  my  duty — which  is  paramount  to  all 
other  considerations — to  enforce  the  constitution  and  the 
laws  enacted  in  pursuance  thereof  to  the  best  of  my  ability 
and  understanding,  and  having  no  discretion  in  the  mat- 
ter, I  feel  constrained  to  hold,  however  much  I  may  re- 
gret the  necessity  of  differing  with  the  Supreme  Court  of 
this  department,  that  notwithstanding  the  fact  that  own- 
ers representing  about  *3. 500,000  of  land  taken,  and 
persons  representing  about  $1,500,000  of  assessments 
imposed  for  alleged  benefit,  have  acquiesced  in  these  pro- 
ceedings, and  that  plaintiff  has  not  offered  to  pay  any 
portion  of  the  benefit  which  his  property  must  have  sus- 
tained by  the  widening  and  straightening  of  Broadway, 
the  plaintiff  is  nevertheless  in  a  position  to  invoke  the  aid 
of  the  constitutional  provision  above  referred  to.  Thus, 
in  House  et  ah  v.  The  City  of  Rochester,  15  Barb.,  517, 
in  which  case  the  damages  and  recompense  to  the  owners 
of  the  lands  taken  for  the  improvement  had  been  ascer- 
tained by  three  assessors  assigned  by  the  Common  Council 
in  pursuance  of  section  193  of  the  charter  of  the  city  of 
Rochester  (chap.  262  of  Laws  1850),  the  General  Term  of 
the  Supreme  Court  for  the  Seventh  Judicial  District  held 
that  that  section  was  plainly  in  conflict  with  the  Consti- 
tution (Art.  I.  £  7)  and  that  the  assessment  based  upon  it 


28 


was  unauthorized  and  void.  "That  the  defendant  after- 
wards paid  the  owners  of  the  land  taken/'  Says  Welles, 
P.  J.,  in  delivering  the  opinion  of  the  court  on  that  oc- 
casion, "  the  amounts  ascertained  by  the  assessors  for  their 
damages  and  recompense,  and  received  conveyances  of  the 
lands,  cannot  have  a  retroactive  operation  so  as  to  heal 
the  defect  and  make  valid  a  proceeding  which  was  merely 
void.  At  the  time  the  assessment  was  made  there  was  no 
legal  basis  for  it  to  rest  upon,  and  the  subsequent  pur- 
chase by  the  defendant  and  conveyance  by  the  owners  of 
the  land  taken  could,  at  most,  be  the  foundation  of  a  new 
or  subsequent  assessment,  but  would  not  authorize  the 
issuing  a  warrant  to  collect  the  previous  void  assessments." 

Nor  has  the  plaintiff  waived  his  right  to  constitutional 
protection.  The  evidence  plainly  shows  that  he  has  in- 
sisted upon  it  at  every  stage  of  the  proceedings  before  the 
commissioners,  before  the  Supreme  Court,  and  in  this 
action,  so  that  if  any  blame  attaches  anywhere,  it  attaches 
solely  to  the  officers  of  the  Corporation,  who  persisted  in 
going  on  in  the  face  of  plaintiff's  objection. 

And,  finally,  it  is  quite  apparent  that  the  infirmity  of 
the  commissioners  is  not  a  mere  irregularity,  technicality, 
omission  of  duty  or  defect  in  authority  within  the  true 
intent  and  meaning  of  chap.  580  of  the  Laws  of  1872.  It 
goes  not  only  to  the  jurisdiction,  but  at  the  same  time 
constitutes  a  palpable  violation  of  the  Constitution.  It 
therefore  invalidates  the  report  and  the  assessments  levied 
under  it. 

As  to  the  Second  Point. 

In  considering  the  point  raised  by  the  defendants,  that 
the  action  will  not  lie  as  brought,  I  will  concede  that 
Chancery  never  had  the  power  to  interfere  with,  or  set 
aside,  an  assessment  made  by  commissioners  of  estimate 
and  assessment,  under  the  authority  of  a  statute  for  pur- 
posi  -  of  local  improvement,  on  the  mere  ground  of  mis- 
take in  the  judgment  of  the  commissioners  and  of  the 
Common  Council,  or  of  the  court  in  ratifying  it,  when 


29 


there  was  no  allegation  of  partiality  or  unfairness.  In 
such  a  ease  the  remedy,  if  any,,  was  always  at  law. 

LeRoy  v.  the  Mayor,  &c,  4  Johns.  Ch.,  352. 

Moores  v.  Smedley,  G  Johns.  Ch.,  28. 

Patterson  v.  The  Mayor,  &c.,  1  Paige,  114. 

Whitney  v.  The  Mayor,  &c,  1  Paige,  548. 

So,  irregularities  in  the  proceedings  to  confirm  the  as- 
sessments which  did  not  render  them  void,  but  only  void- 
able, were  held  not  to  authorize  a  court  of  equity  to  inter- 
fere by  injunction. 

Patterson  v.  The  Mayor,  &c.,  1  Paige,  114  ; 
besides  in 

The  Mayor,  &c,  of  Brooklyn  v.  Meserote,  26 
Wend.,  132. 

And  in  Howell  v.  The  City  oi  Buffalo,  2  Abb.Ct  of  App., 
Dec.  412,  the  doctrine  was  laid  down  that,  "  where  the  pro- 
ceedings in  a  street  improvement  case  are  illegal  and  void, 
and  such  illegality  appears  on  the  face  of  the  proceeding*, 
it  is  not  a  proper  case  for  equity  jurisdiction  and  relief. 
To  constitute  a  cloud  which  the  court  will  interfere  to  re- 
move, it  must  appear  that  it  is  prejudicial,  and  that  in- 
volves the 'existence  of  some  reason  to  apprehend  injury, 
or  that  it  is  set  on  foot  and  relied  upon  to  the  prejudice 
of  the  title.  Where,  therefore,  the  so-called  cloud  has  not 
even  the  appearance  ot  validity  or  substance  as  where  it 
appears  on  the  face  of  the  very  documents  or  proceedings 
upon  which  a  claimant  must  rely,  and  which  he  must 
produce,  that  there  is  no  legal  validity  in  the  claim,  there 
is  no  ground  for  invoking  the  aid  of  a  court  of  equity, 
for  there  is,  in  truth,  no  injury  and  no  ground  for  appre- 
hension of  injury.'' 

The  correctness  of  the  decision  in  Howell  v.  The  City  of 
Buffalo,  has  since  been  questioned  in  Hatch  v.  The  City  of 
Buffalo  38  N.  Y.,276,  and  in  Allen  v.  The  City  of  Buffalo, 
39  N.  Y.,  386;  but  it  is  not  necessary  to  question  it  here, 
for  all  the  authorities  agree  that,  where  the  assessment 
appears  to  be  valid  on  the  face  of  the  record,  and  the  de- 
fect can  only  be  made  to  appear  by  extrinsic  evidence, 
particularly  if  that  evidence  depends  upon  oral  testimony, 


30 


it  does  present  a  case  for  invoking  the  aid  of  a  Court  of 
Equity  to  remove  it  as  a  eloud  upon  the  title. 

Scott  v.  Onderdonk,  14  N.  Y.,  9. 

Haywood  v.  The  City  of  Buffalo,  14  N.  Y., 
534. 

Ward  v.  Dewey,  16  N.  Y.,  519. 

Hatch  v.  The  City  of  Buffalo,  38  N.  Y.,  276. 

Allen  v.  The  City  of  Buffalo,  39  N.  Y.,  386. 

Crooke  v.  Andrews,  40  N.  Y.,  547. 

Newell  v.  Wheeler,  48  N.  Y.,  486. 

Baldwin  v.  The  City  of  Buffalo,  29  Barb.,  396. 

In  the  present  case  the  assessments  complained  of, 
which  amount  to  $30,000  and  upwards,  were  entered  in 
the  record  of  title  of  assessments  confirmed,  which  is  kept 
in  the  office  of  the  clerk  of  arrears  in  the  Comptroller's 
Department,  pursuant  to  the  provisions  of  chap.  381  of 
the  Laws  of  1871,  and  they  are  an  apparent  valid  lien  of 
record  upon  the  plaintiff's  lots  so  assessed,  and  such  re- 
cord, under  such  statute,  is  presumptive  evidence  of  the 
facts  therein  contained.  Moreover,  the  defendants  have 
admitted  the  fact  to  be,  that  proceedings  have  been  taken 
by  them  for  the  collection  of  such  assessments,  and  that 
plaintiff's  lots  are  liable  to  be  sold  therefor,  under  the  sta- 
tutes for  the  collection  of  assessments  in  the  city  of  New 
York. 

Under  such  circumstances,  equity  will  not  refuse  to  en- 
tertain the  action. 

In  passing  upon  the  proceedings  of  the  Commissioners 
of  Estimate  and  Assessment,  the  Supreme  Court  acts  under 
powers  specially  conferred  upon  it  by  statute,  and  although 
it  acts  as  a  court  (Matter  of  Canal  and  Walker  streets, 
12  N.  Y.,  406,  and  cases  there  cited),  and  not  as  a  mere 
commission  of  revision,  as  intimated  in  the  earlier  cases, 
it  acts,  nevertheless,  as  a  court  of  limited  jurisdiction 
that  has  been  specially  designated  for  that  purpose.  The 
exercise  of  that  special  jurisdiction  does  not  interfere 
with  the  exercise  by  courts  of  equity  of  their  ancient  and 
well  established  jurisdiction  to  remove  incumbrances  as  a 
cloud  upon  title.  In  the  matter  of  the  Commissioners  of 
the  Central  Park  (Riverside  Park  Case),  50  N.  Y.,  494, 


31 


the  Court  of  Appeals  gave  as  reasons  for  holding-  that  no 
appeal  lies  to  that  court  from  the  order  of  confirmation  of 
the  Supreme  Court,  that  whenever  the  proceedings  are 
radically  defective  for  want  of  conformity  to  the  law,  or 
for  any  other  reason,  the  remedy  of  any  party  aggrieved, 
is  by  resisting  the  payment  of  the  assessment  or  retaining 
his  property,  as  the  case  may  require,  and  that  thereupon 
the  validity  of  the  proceedings  will  be  open  to  contesta- 
tion by  such  party. 

Xor  is  the  case  of  Lennon  vs.  The  Mayor,  &c.  (not  yet 
reported),  an  authority  to  the  contrary.  In  that  case  the 
Court  of  Common  Pleas  had  held  that  the  assessment, 
which  was  solely  for  work  done,  and  not  for  land  taken, 
although  originally  void  for  want  of  publication  of  the 
resolution  or  ordinance  authorizing  the  work,  was  validated 
by  the  Act  of  1872  (chap.  580,  §  7),  but  that  it  became 
valid  only  from  the  time  of  the  passage  of  that  act,  and 
that,  as  the  sale  had  been  made  in  September,  1871,  when 
no  valid  assessment  existed,  and  had  not  been  rendered 
valid  by  the  Act  of  1872,  the  sale  should  be  set  aside,  but 
that  the  assessment  should  stand.  It  was  with  reference 
to  such  an  assessment  that  the  Court  of  Appeals,  on 
affirming  the  decision,  and  on  plaintiff 's  appeal  from  it, 
said  that  a  plaintiff  has  no  such  constitutional  right  to 
the  aid  of  a  court  of  equity  to  remove  snch  cloud  upon 
his  title,  that  the  Legislature  may  not  deprive  him  of 
that  particular  remedy.  It  is  only  when  the  pretended 
lien  is  sought  to  be  enforced  by  the  taking  of  his  prop- 
erty that  the  owner  is  protected  by  the  Constitution.  If 
the  assessment  in  question  has  not  been  effectually  val- 
idated, the  plaintiffs  may  resist  its  collection  or  the  title  of 
any  purchaser  who  may  claim  by  virtue  of  a  sale  had 
under  it.  Their  constitutional  rights  will  then  come  di- 
rectly in  question.  But  no  such  right  is  violated  by  pre- 
cluding them  from  taking  the  initiative  to  remove  the 
apparent  lien  upon  their  property. v 

In  the  present  case  the  plaintiff  waited  until,  as  has  been 
admitted,  proceedings  had  been  commenced  for  the  col- 
lection of  the  assessments,  and  then  brought  his  action  to 
resist  and  restrain  such  collection.  Neither  at  the  time 
of  the  commencement  of  such  action,  nor  at  the  time  of 


32 


the  trial  and  submission  of  issues,  had  the  assessments 
been  validated,  or  had  the  courts  of  equity  of  this  State 
been  deprived  of  their  ancient  jurisdiction  to  entertain 
such  a  suit.  Since  the  trial,  namely,  May  2,  1874,  it  is 
true,  an  act  has  been  passed  (chap.  312  of  Laws  1874), 
which  provides  that  "  hereafter  no  suit  or  action  in  the 
nature  of  a  bill  in  equity  or  otherwise  shall  be  commenced 
for  the  vacation  of  any  assessment  in  said  city  or  to  re- 
move a  cloud  upon  title,  but  owners  of  property  shall 
hereafter  be  confined  to  their  remedies  in  such  cases  to 
the  proceedings  under  the  act  hereby  amended/'  The  act 
thus  amended  and  referred  to  is  the  Act  of  April  17th, 
1858,  which  provides  for  a  summary  application  to  a  judge 
of  the  Supreme  Court.  But  as  this  recent  enactment  in 
express  terms  prohibits  only  future  actions  and  is  not 
made  applicable  to  actions  pending,  it  would  be  a  work  of 
supererogation  to  consider  in  how  far  it  is  a  valid  exercise 
of  legislative  power. 

As  to  the  Third  Point. 

I  do  not  understand  that  the  defendants  deny  the  power 
of  this  court  to  remove,  in  a  proper  case,  an  incumbrance 
as  a  cloud  upon  title,  nor  could  such  power  be  well  ques- 
tioned at  this  late  day.  That  by  section  33  of  the  Code 
not  only  common  law  jurisdiction  but  also  equity  powers 
were  conferred  on  this  court,  was  expressly  determined  in 
Forrest  vs.  Forrest,  25  N.  Y.,  501.  In  the  actions  enumer- 
ated in  sections  123  and  124  jurisdiction  co-equal  with  the 
Supreme  Court  was  given  to  it,  and  in  such  cases  the 
summons  could  at  all  times  be  served  in  any  part  of  the 
State.  Kerr  vs.  Mount,  28  N.  Y.,  059.  In  all  other  cases 
in  which  an  action  will  lie,  this  court,  except  in  respect  to 
the  person  of  the  defendant,  also  had  co-equal  jurisdiction 
with  the  Supreme  Court  conferred  upon  it  by  the  Code. 
Van  Pelt  vs.  Metallic  Spring  Co.,  13  Abb.  Pr.,  N.  S.,  325. 
By  the  6th  Article  of  the  Constitution  adopted  in  1869, 
(he  court  was  continued  with  the  powers  and  the  jurisdic- 
tion it  then  had  and  sucb  further  civil  and  criminal 
jurisdiction  as  might  be  conferred  by  law  ;  and  under  the 
power  thus  granted,  the  Legislature  conferred  upon  it 


33 


"  original  jurisdiction,  at  law  and  in  equity,  concurrent 
and  co-extensive  with  the  Supreme  Court,  of  all  civil 
actions,  and  of  all  special  proceedings  of  a  civil  nature." 
Chap.  239  of  Laws  1873.  The  effect  of  the  statute  last 
referred  to  upon  the  jurisdiction  of  the  Superior  Court 
was  fully  considered  in  Spyer  vs.  Fisher,  decided  by  this 
court  at  General  Term  in  February,  1874.  It  requires  no 
further  discussion  here. 

But  the  defendants  deny  the  jurisdiction  of  this  court, 
on  the  ground  that  the  action  of  the  Supreme  Court,  in 
confirming  the  report,  was  final  and  conclusive,  and  that 
such  final  decision  cannot  be  reviewed,  impeached  or  re- 
versed in  this  suit.  As  a  whole,  it  is  true,  such  decision 
cannot  be  reviewed  or  reversed  by  any  other  court,  and  as 
to  all  parties  who  have  acquiesced  in  it,  directly  or  by  legal 
implication,  it  will  and  must  remain  final  and  conclusive. 
But  that  at  the  suit  of  a  party  who  has  not  waived  his  right 
to  question  the  validity  of  the  proceedings,  a  court  of 
equity  may,  nevertheless,  in  a  proper  case,  grant  relief  as 
to  such  party  only,  and  that  this  is  a  proper  case  for  such 
relief  has  already  been  sufficiently  demonstrated.  And 
it  will  still  more  clearly  appear,  when  it  is  considered  that 
on  the  motion  for  the  confirmation  of  the  report,  nothing- 
is  submitted  to  the  Supreme  Court  but  the  fitness  of  the 
commissioners,  the  regularity  of  the  proceedings  of  the 
corporation  and  of  the  commissioners,  and  the  justness  of 
the  estimate  and  assessment,  The  review  of  the  justness 
of  the  estimate  and  assessment  extends  to  matters  of 
principle  only,  and  not  to  mere  questions  of  value.  In  re- 
spect to  the  latter,  the  report  is  in  the  nature  of  the  ver- 
dict of  a  jury  upon  a  question  of  fact.  Objections  raised 
on  the  hearing  of  the  motion  to  confirm  the  report  are  in 
the  nature  of  an  appeal  from  the  commissioners,  and  can 
properly  be  decided  only  upon  the  affidavits  and  evidence 
they  had  before  them.  New  affidavits  may  be  received  in 
support  of,  but  not  to  oppose,  the  report. 

Matter  of  William  and  Anthony  streets,  19 
Wend.,  678 ;  followed  in  matter  of  John 
and  Cherry  streets,  19  Wend.,  659  ;  and 
matter  of  Twenty-ninth  street,  1  Hill,  189. 


34 


This  being  so,  it  was  held  in  Embury  v.  Connor,  3  N. 
Y.,  511,  that  an  order  of  confirmation  is  not  an  adjudica- 
tion upon  the  effect  of  the  proceedings,  such  as  to  conclude 
owners  from  subsequently  raising  a  question  as  to  their 
legal  effect. 

And  in  Biker  et  al.  v.  The  Mayor,  &c,  of  New  York,  3 
Daly,  174,  it  was  held,  that  the  Statute  of  1813,  being  sum- 
mary in  its  nature,  should  be  strictly  construed;  that  un- 
der it  the  commissioners  have  an  abstract  duty  to  per- 
form, clearly  stated  and  easily  understood,  which  must  be 
performed,  to  be  final,  in  the  manner  prescribed,  and  to  the 
extent  only  which  is  expressly  defined;  that  neither  the 
Supreme  Court  nor  the  consent  of  the  parties  interested 
can  enlarge  the  powers  of  the  commissioners;  and  that, 
consequently,  the  confirmation  of  the  report  of  the  Su- 
preme Court,  in  a  particular  case,  though  conclusive  in  all 
acts  which  the  commissioners  had  the  power  to  perform, 
is  not  so  as  to  matters  beyond  their  jurisdiction. 

In  conclusion,  it  may  be  well  to  point  out  that  chap.  379 
of  the  Laws  of  1860  provides  that  the  Supreme  Court  of 
the  First  Judicial  District,  the  Court  of  Common  Pleas, 
and  the  Superior  Court  of  the  city  of  New  York,  shall 
have  exclusive  jurisdiction  of  all  actions  or  special  pro- 
ceedings wherein  the  Mayor,  Aldermen  and  Commonalty 
of  the  city  of  Xew  York  are  made  a  party  defendant,  and 
that,  although  by  chapter  586  of  the  Laws  of  1867,  such 
jurisdiction  was  confined  to  the  Supreme  Court,  it  was  re- 
conferred  upon  the  Superior  Court  and  the  Court  of  Com- 
mon Pleas  by  the  re-enactment,  pursuant  to  sec.  8  of  chap. 
853  of  the  Laws  of  1868,  of  all  the  provisions  of  chap.  379 
of  the  Laws  of  1860,  and  continued  in  force  by  the  6th 
article  of  the  Constitution. 

Having  thus  considered  the  case  as  made  by  plaintiff,  in 
all  its  bearings,  and  having  been  unable  to  discover  in  the 
objections  raised  by  the  defendants  any  tangible  reason 
for  declining  to  interfere,  my  final  conclusion  is  that  the 
plaintiff  is  entitled  to  the  relief  demanded  in  the  com- 
plaint, and  judgment  must  be  entered  accordingly. 


